By the time the jury says "Kill the SOB," it's pretty well established.
He's a monster.
That's why they could kill him. It's the Fuck You Test. (One judge, after sitting on a three-judge panel which is Ohio's optional alternative to a jury in a capital case, explained his life vote this way: "I just couldn't look at him and say 'Fuck you.' See, that's the test. If he's a monster, the jury can say, "Fuck you.")
Mark Olive, one of the great death penalty defense lawyers, explains what post-trial lawyers have to do in these cases.
You have to change the story.
He's not talking about a novel. He's talking about the shortest of stories. I could tweet it if I tweeted. Remember, He's a monster. That's a story. He didn't do it. That's another. Change the story so that people say "Innocent guy" instead of "Monster" and you've gone a long way toward saving his life. Of course, "Innocent guy" isn't the only alternative story. Consider
- His lawyer slept through his trial. (Calvin Burdine in Texas)
- He was nominated for the Nobel Peace Prize. (Stanley "Tookie" Williams in California)
- He's got mental retardation. (Lots of cases)
- The prosecutor was sleeping with the judge (Charles Dean Hood in Texas)
Hang on, I'm losing the thread. This is supposed to be a post about Frank Spisak. The State of Ohio intends to murder him on February 17. Here's the Spisak story the jury heard.
Cross-dressing, Nazi, serial killer
That's a hard one. Not much sympathy for him. On the witness stand he gave Nazi salutes and said, "Heil Hitler." He explained that he killed African-Americans because he wanted to start a race war in Cleveland. In federal court, there were two other stories.
- His trial lawyers were incompetent.
- The judge's charge to the jury was legally wrong.
Then there was the clemency hearing before the Parole Board, and another new story - one that developed at a time when no court could hear it.
Frank Spisak suffers, and at the time of the killings did suffer from serious mental illness. He's severely bi-polar.
But there's that cross-dressing, Nazi, serial killer thing. And the fact that the jury knew he was nuts.
The Parole Board said he should die. There were no dissents.
Incompetent lawyers? They were.
Improper jury instructions? You bet.
Seriously bi-polar? More than likely.
Add all that up, and Spisak shouldn't be killed. It's not legally right. But I'm not holding my breath for Gov. Kasich to fix it.
Spisak, you know, is a monster.
The law be damned.
That's pretty much all that counts.